Exhibit 10.34
Prepared by and return to:
Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
MORTGAGE AND SECURITY AGREEMENT
THIS MORTGAGE executed October 15, 1999, by and between FEATHERLITE,
INC., formerly known as FEATHERLITE MFG., INC., a Minnesota corporation, whose
address for notice under this Mortgage is 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000 (hereinafter referred to as "Mortgagor"), and FIRST UNION NATIONAL BANK,
whose address is X.X. Xxx 0000, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to
as the "Mortgagee").
W I T N E S S E T H:
That for good and valuable consideration and to secure the payment of
an indebtedness in the aggregate sum of ONE MILLION ONE HUNDRED FORTY THOUSAND
SIX HUNDRED FORTY AND NO/100 DOLLARS ($1,140,640.00), or so much thereof as may
be advanced, to be paid in accordance with a note of even date herewith
(hereinafter referred to as the "Note") which note has a maturity date of
October 15, 2004, together with interest thereon and any and all sums due or
which may become due from the Mortgagor to the Mortgagee, the Mortgagor does
grant, bargain, sell, alien, remise, release, convey and confirm unto the
Mortgagee its successors and assigns, in fee simple, all of that certain tract
of land of which the Mortgagor is now seized and possessed and in actual
possession, situate in the County of Seminole, State of Florida, which is more
fully described in Exhibit "A" attached hereto and made a part hereof, together
with the buildings and improvements thereon erected or to be erected
(hereinafter referred to as the "Premises");
TOGETHER with:
(i) all leasehold estate, and all right, title and interest of
Mortgagor in and to all leases or subleases covering the Premises or any portion
thereof now or hereafter existing or entered into, and all right, title and
interest of Mortgagor thereunder, including, without limitation, all cash or
security deposits, advance rentals, and deposits or payments of similar nature;
(ii) all right, title and interest of Mortgagor in and to all options
to purchase or lease the Premises or any portion thereof or interest therein,
and any greater estate in the Premises owned or hereafter acquired;
(iii) all easements, streets, ways, alleys, rights-of-way and rights
used in connection therewith or as a means of access thereto, and all tenements,
hereditaments and appurtenances thereof and thereto, and all water rights;
(iv) any and all buildings, structures and improvements now or
hereafter erected thereon, including, but not limited to the fixtures,
attachments, appliances, equipment, machinery, and other articles attached to
said buildings, structures and improvements (sometimes hereinafter referred to
as the "Improvements");
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(v) all fixtures, appliances, machinery, equipment, furniture,
furnishings and articles of personal property now or hereafter affixed to,
placed upon or used in connection with the operation of any of said properties,
all gas, steam, electric, water and other heating, cooking, refrigeration,
lighting, plumbing, ventilating, irrigating and power systems, machines,
computer hardware or software, appliances, fixtures, and appurtenances which are
now or may hereafter pertain or be used with, in or on said premises, even
though they may be detached or detachable and all building improvement and
construction materials, supplies and equipment hereafter delivered to said land
contemplating installation or use in the constructions thereon and all rights
and interests of Mortgagor in any water and sewer capacity, reservations and
hook-ups, impact fee credits, building permits and architectural plans and
specifications relating to contemplated constructions or Improvements on said
Premises and all rights and interests of Mortgagor in present or future mortgage
loan commitments pertaining to any of said Premises or Improvements thereon;
(vi) all awards and proceeds of condemnation for the Premises or any
part thereof to which Mortgagor is entitled for any taking of all or any part of
the Premises by condemnation or exercise of the right of eminent domain. All
such awards and condemnation proceeds are hereby assigned to Mortgagee and the
Mortgagee is hereby authorized, subject to the provisions contained in this
Mortgage, to apply such awards and condemnation proceeds or any part thereof,
after deducting therefrom any expenses incurred by the Mortgagee in the
collection or handling thereof, toward the payment, in full or in part, of the
Note, notwithstanding the fact that the amount owing thereon may not then be due
and payable;
(vii) all rents, issues and profits of the Premises and all the
estate, right, title and interest of every nature whatsoever of the Mortgagor in
and to the same;
(viii) all accounts, inventory, equipment, contract rights, franchises,
licenses, water and sewer capacity, bills of sale, leases, conditional sales
contracts and general intangibles now owned or hereafter acquired by the
Mortgagor, whether or not located on the Mortgaged Property, as hereinafter
defined, including without limitation, all proceeds and choses in action arising
under any insurance policies maintained with respect to all or any part of the
Mortgaged Property; and,
(ix) all proceeds, products, replacements, additions, substitutions,
renewals and accessions of any of the foregoing items.
All of the items set forth in subparagraphs (v), (vi), (vii), (viii) and (ix)
above are hereinafter sometimes collectively referred to as the "Personal
Property." All of the foregoing real and personal property, including, without
limitation, the Premises, Improvements and Personal Property; and all rights,
privileges and franchises are collectively referred to as the "Mortgaged
Property."
TO HAVE AND TO HOLD all and singular the Mortgaged Property hereby
conveyed, and the tenements, hereditaments and appurtenances thereunto belonging
or in anywise appertaining, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof and also all the estate, right,
title, interest, property, possession, claim and demand whatsoever as well in
law as in equity of the said Mortgagor in and to the same and every part and
parcel thereof unto the said Mortgagee in fee simple.
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PROVIDED ALWAYS that if the Mortgagor shall pay to the Mortgagee any
and all indebtedness due by Mortgagor to Mortgagee (including the indebtedness
evidenced by the Note and any and all renewals of the same) and shall perform,
comply with and abide by each and every stipulation, agreement, condition, and
covenant of the Note and of this Mortgage; then this Mortgage and the estate
hereby created shall cease and be null and void. Provided, it is further
covenanted and agreed by the parties hereto that this Mortgage also secures the
payment of and includes all future or further advances as hereinafter set forth,
to the same extent as if such made on the date of the execution of this
Mortgage, and any disbursements made for the payment of tax, levies or insurance
on the Mortgaged Property, with interest on such disbursements at the Default
Rate as hereinafter defined.
To protect the security of this Mortgage, the Mortgagor further
covenants, warrants and agrees with the Mortgagee as follows:
ARTICLE I
COVENANTS AND AGREEMENTS OF MORTGAGOR
1.01 Payment of Secured Obligations. Mortgagor shall pay when due the
principal of, and the interest on, the indebtedness evidenced by the Note, and
the charges, fees and the principal of, and interest on, any future advances
secured by this Mortgage and shall otherwise comply with all the terms of the
Note, this Mortgage and all other documents executed by Mortgagor in connection
with the loan secured by this Mortgage, and that certain Construction Loan
Agreement between Mortgagor and Mortgagee dated November 2, 1998 (collectively
the "Loan Documents").
1.02 Warranties and Representations. Mortgagor hereby covenants with
Mortgagee that Mortgagor is indefeasibly seized of the Mortgaged Property in fee
simple; that the Mortgagor has full power and lawful right to convey the same in
fee simple as aforesaid; that it shall be lawful for Mortgagor at all times
peaceably and quietly to enter upon, hold, occupy and enjoy said Mortgaged
Property and every part thereof; that Mortgagor will make such further
assurances to perfect the lien interest in said Mortgaged Property in Mortgagee,
as may reasonably be required; and that Mortgagor does hereby fully warrant the
title to the Mortgaged Property and every part thereof and will defend the same
against the lawful claims of all persons whomever.
Mortgagor further represents and warrants to Mortgagee that all
information, reports, papers, and data given to Mortgagee with respect to
Mortgagor, and to the loan evidenced by the Note and Mortgage are accurate and
correct in all material respects and complete insofar as may be necessary to
give Mortgagee a true and accurate knowledge of the subject matter.
1.03 Ground Leases, Leases, Subleases and Easements. Mortgagor, at
Mortgagor's sole cost and expense, shall maintain and cause to be performed all
of the covenants, agreements, terms, conditions and provisions on its part to be
kept, observed and performed under any ground lease, lease, sublease or
easements which may constitute a portion of or an interest in the Premises,
shall require its tenants or subtenants to keep, observe and perform all the
covenants, agreements, terms, conditions and provisions on their part to be
kept, observed or performed under any and all ground leases, leases, subleases
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or easements; and shall not suffer or permit any breach or default to occur with
respect to the foregoing; and in default thereof the Mortgagee shall have the
right to perform or to require performance of any such covenants, agreements,
terms, conditions or provisions of any such ground lease, lease, sublease or
easements and to add any expense incurred in connection therewith to the debt
secured hereby, which such expense shall bear interest from the date of payment
to the date of recovery by the Mortgagee at the Default Rate as hereinafter
defined. Any such payment by the Mortgagee with interest thereon shall be
immediately due and payable. The Mortgagor shall not, without the consent of the
Mortgagee, consent to the modification, amendment, cancellation, termination or
surrender of any such ground lease, lease, sublease, or easement. No release or
forbearance of any of Mortgagor's obligation under any such ground lease, lease,
or sublease, shall release Mortgagor from any of its obligations under this
Mortgage.
1.04 Required Insurance. Mortgagor will, at Mortgagor's sole cost and
expense, maintain or cause to be maintained with respect to the Mortgaged
Property, and each part thereof, the following insurance:
(a) Insurance against loss or damage to the Improvements by fire and
any of the risks covered by insurance of the type now known as "fire and
extended coverage", in an amount not less than the full replacement cost of the
Improvements; and
(b) Such other insurance, and in such amounts, as may from time to time
be required by Mortgagee against the same or other hazards.
All policies of insurance required by the terms of this Mortgage shall
contain an endorsement or agreement by the insurer that any loss shall be
payable in accordance with the terms of such policy notwithstanding any act or
negligence of Mortgagor which might otherwise result in forfeiture of said
insurance and the further agreement of the insurer waiving all rights of set
off, counterclaim or deductions against Mortgagor.
Mortgagor may effect for its own account any insurance not required
under this Section 1.04, but any such insurance effected by Mortgagor on the
Premises, whether or not so required, shall be for the mutual benefit of
Mortgagor and Mortgagee and shall be subject to the other provisions of this
Mortgage.
1.05 Delivery of Policies, Payment of Premiums. All policies of
insurance shall be issued by companies and in amounts in each company
satisfactory to Mortgagee. All policies of insurance shall have attached thereto
a lender's loss payment endorsement for the benefit of Mortgagee in form
satisfactory to Mortgagee. Mortgagor shall furnish Mortgagee with an original
policy of all policies of required insurance. If Mortgagee consents to Mortgagor
providing any of the required insurance through blanket policies carried by
Mortgagor and covering more than one location, then Mortgagor shall furnish
Mortgagee with a certificate of insurance for each such policy setting forth the
coverage, the limits of liability, the name of the carrier, the policy number,
and the expiration date. At least thirty (30) days prior to the expiration of
each such policy, Mortgagor shall furnish Mortgagee with evidence satisfactory
to Mortgagee of the payment of premium and the reissuance of a policy continuing
insurance in force as required by this Mortgage. All such policies shall contain
a provision that such policies will not be canceled or materially amended, which
term shall include any reduction in the scope or limits of coverage, without at
least thirty (30) days prior written notice to Mortgagee. In the event Mortgagor
fails to provide, maintain, keep in force or deliver and furnish to Mortgagee
the policies of insurance required by this Section, Mortgagee may procure such
insurance or single-interest insurance for such risks covering Mortgagee's
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interest, and Mortgagor will pay all premiums thereon promptly upon demand by
Mortgagee, and until such payment is made by Mortgagor the amount of all such
premiums together with interest thereon at the Default Rate as hereinafter
defined.
1.06 Insurance Proceeds. After the happening of any casualty to the
Mortgaged Property or any part thereof, Mortgagor shall give prompt written
notice thereof to Mortgagee.
(a) In the event of any damage to or destruction of the Mortgaged
Property, Mortgagee shall have the option in its sole discretion of applying or
paying all or part of the insurance proceeds (i) to any indebtedness secured
hereby and in such order as Mortgagee may determine, or (ii) to the restoration
of the Improvements, or (iii) to Mortgagor; provided, however, that if no Event
of Default exists under the Note or this Mortgage and if the insurance proceeds
are sufficient to fully restore the Improvements, Mortgagee shall permit the use
of the insurance proceeds for restoration of the Improvements..
(b) In the event of such loss or damage, all proceeds of insurance
shall be payable to Mortgagee, and Mortgagor hereby authorizes and directs any
affected insurance company to make payment of such proceeds directly to
Mortgagee. Mortgagee is hereby authorized and empowered by Mortgagor to settle,
adjust or compromise any claims for loss, damage or destruction under any policy
or policies of insurance.
(c) Except to the extent that insurance proceeds are received by
Mortgagee and applied to the indebtedness secured hereby, nothing herein
contained shall be deemed to excuse Mortgagor from repairing or maintaining the
Mortgaged Property as provided in this Mortgage or restoring all damage or
destruction to the Mortgaged Property, regardless of whether or not there are
insurance proceeds available or whether any such proceeds are sufficient in
amount, and the application or release by Mortgagee of any insurance proceeds
shall not cure or waive any default or notice of default under this Mortgage or
invalidate any act done pursuant to such notice.
1.07 Assignment of Policies Upon Foreclosure. In the event of
foreclosure of this Mortgage or other transfer of title or assignment of the
Mortgaged Property in extinguishment, in whole or in part, of the debt secured
hereby, all right, title and interest of the Mortgagor in and to all policies of
insurance required by this Section shall inure to the benefit of and pass to the
successor in interest to Mortgagor or the purchaser or grantee of the Mortgaged
Property. Mortgagor hereby appoints Mortgagee its attorney-in-fact to endorse
any checks, drafts or other instruments representing any proceeds of such
insurance, whether payable by reason of loss thereunder or otherwise.
1.08 Taxes, Utilities and Impositions. Mortgagor will pay, or cause to
be paid and discharged, on or before the last day on which they may be paid
without penalty or interest, all such duties, taxes, sewer rents, charges for
water, or for setting or repairing of meters, and all other utilities on the
Mortgaged Property or any part thereof, and any assessments and payments, usual
or unusual, extraordinary or ordinary, which shall be imposed upon or become due
and payable or become a lien upon the Premises or any part thereof and the
sidewalks or streets in front thereof and any vaults therein by virtue of any
present or future law of the United States or of the State, County, or City
wherein the Premises are located (all of the foregoing being herein collectively
called "Impositions"). In default of any such payment of any Imposition,
Mortgagee may pay the same and the amount so paid by Mortgagee shall, at the
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Mortgagee's option, become immediately due and payable with interest at the
Default Rate and shall be deemed part of the indebtedness secured by this
Mortgage.
If at any time there shall be assessed or imposed (i) a tax or
assessment on the Premises in lieu of or in addition to the Impositions payable
by Mortgagor pursuant to this Section or (ii) a license fee, tax or assessment
imposed on Mortgagee and measured by or based in whole or in part upon the
amount of the outstanding obligations secured hereby, then all such taxes,
assessments or fees shall be deemed to be included within the term "Impositions"
as defined in this Section, and Mortgagor shall pay and discharge the same as
herein provided with respect to the payment of Impositions or, at the option of
Mortgagee, all obligations secured hereby, together with all accrued interest
thereon, shall immediately become due and payable. Anything to the contrary
herein notwithstanding, Mortgagor shall have no obligation to pay any franchise,
estate, inheritance, income, excess profits or similar tax levied on Mortgagee
or on the obligations secured hereby.
Mortgagor will pay all mortgage recording taxes and fees payable with
respect to this Mortgage or other mortgage or transfer taxes due on account of
this Mortgage or the Note secured hereby.
Mortgagor will exhibit to Mortgagee the original receipts or other
reasonably satisfactory proof of the payment of all Impositions which may affect
the Mortgaged Property or any part thereof or the lien of the Mortgage promptly
following the last day on which each Imposition is payable hereunder.
Notwithstanding the foregoing, Mortgagor shall have the right, after
prior written notice to Mortgagee, to contest at its own expense the amount and
validity of any Imposition affecting the Mortgaged Property by appropriate
proceedings conducted in good faith and with due diligence and to postpone or
defer payment thereof, if and so long as:
(a) Such proceedings shall operate to suspend the collection of such
Imposition from Mortgagor or the Mortgaged Property; or
(b) Neither the Mortgaged Property nor any part thereof would be in
immediate danger of being forfeited or lost by reason of such proceedings,
postponement or deferment; and
(c) In the case of any Imposition affecting the Mortgaged Property
which might be or become a lien, encumbrance or charge upon or result in any
forfeiture or loss of the Mortgaged Property or any part thereof, or which might
result in loss or damage to Mortgagor or Mortgagee, Mortgagor, prior to the day
such Imposition would become delinquent, shall have furnished Mortgagee with
security satisfactory to Mortgagee, and, in the event that such security is
furnished, Mortgagee shall not have the right during the period of the contest
to pay, remove or discharge the Imposition.
1.09 Maintenance, Repairs, Alterations. Mortgagor shall keep the
Mortgaged Property, or cause the same to be kept, in good condition and repair
and fully protected from the elements to the satisfaction of Mortgagee;
Mortgagor shall not commit nor permit to be committed waste thereon and shall
not do nor permit to be done any act by which the Mortgaged Property shall
become less valuable; Mortgagor will not remove, demolish or structurally alter
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any of the Improvements (except such alterations as may be required by laws,
ordinances or regulations) without the prior written permission of the
Mortgagee; Mortgagor shall complete promptly and in good and workmanlike manner
any building or other improvement which may be constructed on the Premises and
promptly restore in like manner any Improvements which may be damaged or
destroyed thereon and will pay when due all claims for labor performed and
materials furnished therefor; Mortgagor shall use and operate, and shall require
its lessees or licensees to use or operate, the Mortgaged Property in compliance
with all applicable laws, ordinances, regulations, covenants, conditions and
restrictions, and with all applicable requirements of any ground lease, lease or
sublease now or hereafter affecting the Premises or any part thereof. Unless
required by law or unless Mortgagee has otherwise agreed in writing, Mortgagor
shall not allow changes in the stated use of Mortgaged Property from that which
was disclosed to Mortgagee at the time of execution hereof. Mortgagor shall not
initiate or acquiesce to a zoning change of the Mortgaged Property without the
prior notice to and consent of Mortgagee. Mortgagee and its representatives
shall have access to the Premises at all reasonable times to determine whether
Mortgagor is complying with its obligations under this Mortgage, including, but
not limited to, those set out in this Section.
1.10 Eminent Domain. Should the Mortgaged Property, or any part thereof
or interest therein, be taken or damaged by reason of any public use or
improvement or condemnation proceeding, or in any other manner ("Condemnation"),
or should Mortgagor receive any notice or other information regarding such
Condemnation, Mortgagor shall give prompt written notice thereof to Mortgagee.
(a) Mortgagee shall be entitled to all compensation, awards and other
payments or relief granted in connection with such Condemnation, and shall be
entitled, at its option, to commence, appear in and prosecute in its own name
any action or proceedings relating thereto. Mortgagee shall also be entitled to
make any compromise or settlement in connection with such taking or damage. All
such compensation, awards, damages, rights of action and proceeds awarded to
Mortgagor (the "Proceeds") are hereby assigned to Mortgagee and Mortgagor agrees
to execute such further assignments of the Proceeds as Mortgagee may require.
(b) In the event any portion of the Mortgaged Property is so taken or
damaged, Mortgagee shall have the option in its sole and absolute discretion, to
apply all such Proceeds, after deducting therefrom all costs and expenses
(regardless of the particular nature thereof and whether incurred with or
without suit), including attorneys' and paralegals' fees and costs, incurred by
it in connection with such Proceeds, upon any indebtedness secured hereby, or to
apply all such Proceeds, after such deductions, to the restoration of the
Mortgaged Property upon such conditions as Mortgagee may determine. Such
application or release shall not cure or waive any default or notice of default
hereunder or invalidate any act done pursuant to such notice.
(c) Any amounts received by Mortgagee hereunder (after payment of any
costs in connection with obtaining same), shall, if retained by Mortgagee, be
applied in payment of any accrued interest and then in reduction of the then
outstanding principal sum of the Note, notwithstanding that the same may not
then be due and payable. Any amount so applied to principal shall be applied to
the payment of installments of principal on the Note in inverse order of their
due dates.
1.11 Actions By Mortgagee To Preserve The Security Of This Mortgage. If
the Mortgagor fails to make any payment or to do any act as and in the manner
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provided for in this Mortgage or the Note, the Mortgagee, in its own discretion,
without obligation so to do and without notice to or demand upon Mortgagor and
without releasing Mortgagor from any obligation, may make or do the same in such
manner and to such extent as the Mortgagee may deem necessary to protect the
security hereof. Mortgagor will pay upon demand all expenses incurred or paid by
Mortgagee (including, but not limited to, attorneys' and paralegals' fees and
costs and court costs including those of appellate and bankruptcy proceedings)
on account of the exercise of any of the aforesaid rights or privileges or on
account of any litigation which may arise in connection with this Mortgage or
the Note or on account of any attempt, without litigation, to enforce the terms
of this Mortgage or said Note. In case the Mortgaged Property or any part
thereof shall be advertised for foreclosure sale and not sold, Mortgagor shall
pay all costs in connection therewith.
In the event that the Mortgagee is called upon to pay any sums of money
to protect this Mortgage and the Note as aforesaid, all monies advanced or due
hereunder shall become immediately due and payable, together with interest at
the Default Rate, computed from the date of such advance to the date of the
actual receipt of payment thereof by the Mortgagee.
1.12 Cost of Collection. In the event this Mortgage is placed in the
hands of an attorney for the collection of any sum payable hereunder, the
Mortgagor agrees to pay all costs of collection, including reasonable attorneys'
and paralegals' fees and costs including those in all appellate and bankruptcy
proceedings, incurred by the Mortgagee, either with or without the institution
of any action or proceeding, and in addition to all costs, disbursements and
allowances provided by law. All such costs so incurred shall be deemed to be
secured by this Mortgage.
1.13 Survival of Warranties. All representations, warranties and
covenants of Mortgagor contained herein or incorporated by reference shall
survive funding of the loan evidenced by the Note and shall remain continuing
obligations, warranties and representations of Mortgagor during any time when
any portion of the obligations secured by this Mortgage remain outstanding.
1.14 Additional Security. In the event Mortgagee at any time holds
additional security for any of the obligations secured hereby, it may enforce
the sale thereof or otherwise realize upon the same, at its option, either
before or concurrently herewith or after a sale is made hereunder.
1.15 Inspections. Mortgagee, or its agents, representatives or workmen,
are authorized to enter at any reasonable time upon or on any part of the
Premises for the purpose of inspection the same, and for the purpose of
performing any of the acts it is authorized to perform under the terms of this
Mortgage.
1.16 Liens. Mortgagor shall pay and promptly discharge, at Mortgagor's
cost and expense, all liens, encumbrances and charges upon the Mortgaged
Property or any part thereof or interest therein, except for the existing liens
in favor of Deutche Financial Services Corporation and Firstar Bank Iowa.
Mortgagor shall have the right to contest in good faith the validity of any such
lien, encumbrance or charge, provided Mortgagor shall first deposit with
Mortgagee a bond or other security satisfactory to Mortgagee in such amounts as
Mortgagee shall reasonably require, and provided further that Mortgagor shall
thereafter diligently proceed to cause such lien, encumbrance or charge to be
removed and discharged. If Mortgagor shall fail to discharge any such lien,
encumbrance or charge, then, in addition to any other right or remedy,
Mortgagee, may, but shall not be obligated to, discharge the same, either by
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paying the amount claimed to be due, or by procuring the discharge of such lien
by depositing in court a bond for the amount claimed or otherwise giving
security for such claim, or in such manner as is or may be prescribed by law.
Any amount so paid by the Mortgagee shall, at Mortgagee's option, become
immediately due and payable with interest at the Default Rate, and shall be
deemed part of the indebtedness secured by this Mortgage.
1.17 Future Advances. This Mortgage is given to secure not only
existing indebtedness, but also future advances, whether such advances are
obligatory or are to be made at the option of Mortgagee, or otherwise, as are
made within twenty (20) years from the date hereof, to the same extent as if
such future advances are made on the date of the execution of this Mortgage. The
total amount of indebtedness that may be so secured may decrease to a zero
amount from time to time, or may increase from time to time, but the total
unpaid balance so secured at one time shall not exceed twice the face amount of
the Note, plus interest thereon, and any disbursements made for the payment of
taxes, levies or insurance on the Mortgaged Property, with interest on such
disbursements at the Default Rate.
1.18 No Limitation of Future Advance Rights. Mortgagor covenants and
agrees with Mortgagee that:
(a) Mortgagor waives and agrees not to assert any right to limit future
advances under this Mortgage, and any such attempted limitation shall be null,
void and of no force and effect. Any correspondence by Mortgagor regarding the
future advances must be sent to Mortgagee at the address set forth above and to
Mortgagee's counsel: Xxxxxx X. Xxxxxxx, Carlton, Fields, X.X. Xxx 0000, Xxxxxxx,
Xxxxxxx 00000.
(b) An event of default under the Mortgage shall automatically exist
(i) if Mortgagor executes any instrument which purports to have or would have
the effect of impairing the priority of or limiting any future advance which
might ever be made under the Mortgage, or (ii) if Mortgagor takes, suffers, or
permits any action of occurrence which would adversely affect the priority of
any future advance which might ever be made under the Mortgage.
1.19 Appraisals. Mortgagor consents and agrees that Mortgagee may
obtain an appraisal of the mortgaged property when required by regulations of
the Federal Reserve Board or the Office of the Comptroller of Currency. The cost
of such appraisals shall be borne by the Mortgagor. Mortgagor further agrees
that Mortgagee may obtain an appraisal at such other times Mortgagee may
reasonably require and that the cost of such appraisal shall be borne by the
Mortgagor, however, Mortgagor shall not be required to pay the cost of such
appraisal more than once every three (3) years. If requested by Mortgagee, the
Mortgagor shall execute an engagement letter addressed to the appraiser selected
by the Mortgagee. Mortgagor's failure or refusal to sign such engagement letter,
however, shall not impair Mortgagee's right to obtain such appraisal. Mortgagor
agrees to pay the cost for the appraisals set out above within ten (10) days
after receiving an invoice for such appraisal.
1.20 Transfer. In the event all or any part of the Mortgaged Property,
or any interest therein, is sold, conveyed, encumbered or otherwise transferred
by the Mortgagor, without Mortgagee's prior written consent, or, if Mortgagor is
a partnership or limited liability company, if any general partner or member
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owning 10% or more of the beneficial interest in the partnership or company
transfers such interest, or if any general partner or member of Mortgagor ceases
to be a general partner or member, or if Mortgagor is a corporation:
(a) if any shareholder of Mortgagor owning directly or indirectly 10%
or more of the issued and outstanding stock of Mortgagor as of the date hereof
transfers, during the term of this Mortgage, any of such stock, or
(b) if any additional stock of Mortgagor is issued after the date
hereof; then, and in the event any of the foregoing events occur, Mortgagee may,
in its sole discretion require a modification of the terms of the loan or loans
secured hereby (including without limitation those related to the rate of
interest and terms or schedule of repayment) in a manner satisfactory to
Mortgagee, and may charge an "assumption fee" or similar fee in consideration of
such modification or approval, or accelerate the indebtedness secured hereby and
declare the then outstanding balance, with all accrued interest to be
immediately due and payable.
1.21 Books and Records. Mortgagor shall keep books and records
reflecting its financial condition including, but not limited to, the operation
of the Mortgaged Property, in accordance with generally accepted accounting
principles consistently applied. Mortgagee shall have the right, from time to
time, and at all times, during normal business hours, to examine such books,
records and accounts at the offices of the Mortgagor or other person or entity
maintaining such books, records and accounts, and to make such copies thereof as
Mortgagee may desire.
1.22 Annual Statements. Mortgagor shall deliver to Mortgagee, within
120 days after the close of each fiscal year, audited financial statements
reflecting its operations during such fiscal year, including, without
limitation, a balance sheet, profit and loss statement and statement of cash
flows, with supporting schedules and auditor's management letter, all in
reasonable detail, prepared in conformity with generally accepted accounting
principles, applied on a basis consistent with that of the preceding year. All
such statements shall be examined by an independent certified public accountant
acceptable to Mortgagee. The opinion of such independent certified public
accountant shall not be acceptable to Mortgagee if qualified due to any
limitations in scope imposed by Mortgagor. Any other qualification of the
opinion by the accountant shall render the acceptability of the financial
statements subject to Mortgagee's approval.
1.23 Other Indebtedness Secured. This Mortgage is also given as
security for any and all other sums, indebtedness, obligations and liabilities
of any and every kind now or hereafter during the term hereof owing and to
become due from Mortgagor to Mortgagee, however created, incurred, evidenced,
acquired or arising, whether under the Note or this Mortgage, or any other
instrument, obligation, contract, agreement or dealing of any and every kind now
or hereafter existing or entered into between Mortgagor and Mortgagee, or
otherwise, as amended, modified or supplemented from time to time, and whether
direct, indirect, primary, secondary, fixed or contingent, and any and all
renewals, modifications or extensions of any or all of the foregoing.
1.24 Funds Flow Coverage Ratio. Mortgagor shall, at all times, maintain
a Funds Flow Coverage Ratio of not less than 1.30 to 1.00. "Funds Flow Coverage
Ratio" shall mean the sum of net profit, depreciation and amortization minus all
dividends, withdrawals, and non-cash income for the previous four consecutive
fiscal quarters divided by the sum of all current maturities of long term debt
plus the current maturities of capital lease obligations.
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1.25 Cross Default. Mortgagor shall not permit the occurrence of any
event of default on any material contract with or obligation when due to a third
party or default in the performance of any obligation of a third party incurred
for borrowed money.
ARTICLE II
ASSIGNMENT OF LEASES, SUBLEASES,
FRANCHISES, RENTS, ISSUES AND PROFITS
2.01 Assignment of Rents. Mortgagor hereby assigns and transfers to
Mortgagee all the leases, subleases, franchises, rents, issues and profits of
the Mortgaged Property, and hereby gives to and confers upon Mortgagee the
right, power and authority to collect such rents, issues and profits as herein
set forth. Mortgagor irrevocably appoints Mortgagee its true and lawful
attorney-in-fact, at the option of Mortgagee, immediately and without further
legal action being necessary, to demand, receive and enforce payment, to give
receipts, releases and satisfactions, and to xxx, in the name of Mortgagor or
Mortgagee, for all such rents, issues and profits and apply the same to the
indebtedness secured hereby; provided, however, that Mortgagor shall have the
right to collect such rents, issues and profits (but not more than one month in
advance) prior to or at any time there is not an event of default under this
Mortgage.
2.02 Collection Upon Default. Upon any event of default under this
Mortgage, Mortgagee may, at any time without notice, either in person, by agent
or by a receiver appointed by a court, and without regard to the adequacy of any
security for the indebtedness hereby secured, enter upon and take possession of
the Mortgaged Property, or any part thereof, in its own name, xxx for or
otherwise collect such rents, issues and profits, including those past due and
unpaid, and apply the same, less costs and expenses of operation and collection,
including attorneys' and paralegals' fees and costs, upon any indebtedness
secured hereby, and in such order as Mortgagee may determine. The collection of
such rents, issues and profits, or the entering upon and taking possession of
the Mortgaged Property, or the application thereof as aforesaid, shall not cure
or waive any default or notice of default hereunder or invalidate any act done
in response to such default or pursuant to such notice of default.
2.03 Restriction on Further Assignments, etc. Except as hereinafter
specifically provided, Mortgagor shall not, without the prior written consent of
the Mortgagee, assign the rents, issues or profits, or any part thereof, from
the Mortgaged Property or any part thereof; and shall not consent to the
modification, cancellation or surrender of any lease or sublease covering the
Mortgaged Property. An action of Mortgagor in violation of the terms of this
Section shall be void as against Mortgagee in addition to being a default under
this Mortgage.
The Mortgagor shall not, without the consent of the Mortgagee, consent
to the cancellation or surrender or, accept prepayment of rents, issues or
profits, other than rent paid at the signing of a lease or sublease, under any
lease or sublease now or hereafter covering the Mortgaged Property or any part
thereof, nor modify any such lease or sublease so as to shorten the term,
decrease the rent, accelerate the payment of rent, or change the terms of any
renewal option; and any such purported assignment, cancellation, surrender,
prepayment or modification made without the written consent of the Mortgagee
shall be void as against the Mortgagee. The Mortgagor shall, upon demand of the
Mortgagee, enter into an agreement with the Mortgagee with respect to the
provisions contained in the preceding provision regarding any lease or sublease
covering said Mortgaged Property or any part thereof, and the Mortgagor hereby
appoints the Mortgagee attorney-in-fact of the Mortgagor to execute and deliver
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any such agreement on behalf of the Mortgagor and deliver written notice thereof
to the tenant to whose lease such agreement relates.
The Mortgagor agrees to furnish to the Mortgagee a copy of any
modification of any lease presently in effect and copies of all future leases
affecting the Mortgaged Property covered by this Mortgage, and failure to
furnish to the Mortgagee a copy of any modification of a lease or a copy of any
future lease affecting said Mortgaged Property, shall be deemed a default under
this Mortgage and the Note, for which the holder of this Mortgage may, at its
option, declare the entire unpaid balance of the subject Mortgage and Note to be
immediately due and payable.
All leases or subleases hereafter entered into by Mortgagor with
respect to the Mortgaged Property or any part thereof, shall be subordinate to
the lien of this Mortgage unless expressly made superior to this Mortgage in the
manner hereinafter provided. At any time or times Mortgagee may execute and
record in the appropriate Office of the Register or County Clerk of the County
where the Premises are situated, a Notice of Subordination reciting that the
lease or leases therein described shall be superior to the lien of this
Mortgage. From and after the recordation of such Notice of Subordination, the
lease or leases therein described shall be superior to the lien of this Mortgage
and shall not be extinguished by any foreclosure sale hereunder.
ARTICLE III
ENVIRONMENTAL CONDITION OF PREMISES
3.01 Environmental Condition of Property. Mortgagor hereby warrants and
represents to Mortgagee after thorough investigation that:
(a) the Premises are now and at all times hereafter will continue to be
in full compliance with all Federal, State and local environmental laws and
regulations, including but not limited to, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (CERCLA), Public Law Xx.
00-000, 00 Xxxx. 0000, and the Superfund Amendments and Reauthorization Act of
1986 (XXXX), Public Law Xx. 00-000, 000 Xxxx. 0000, xxx
(x) (x) as of the date hereof there are no hazardous materials,
substances, waste or other environmentally regulated substances (including
without limitation, any materials containing asbestos) located on, in or under
the Premises or used in connection therewith, or (ii) Mortgagor has fully
disclosed to Mortgagee in writing the existence, extent and nature of any such
hazardous material, substance, waste or other environmentally regulated
substance, currently present or which Mortgagor is legally authorized and
empowered to maintain on, in or under the Premises or use in connection
therewith, Mortgagor has obtained and will maintain all licenses, permits and
approvals required with respect thereto, and is and will remain in full
compliance with all of the terms, conditions and requirements of such licenses,
permits and approvals. Mortgagor further warrants and represents that it will
promptly notify Mortgagee of any change in the environmental condition of the
Premises or in the nature or extent of any hazardous materials, substances or
wastes maintained on, in or under the Premises or used in connection therewith,
and will transmit to Mortgagee copies of any citations, orders, notices or other
material governmental or other communication received with respect to any other
hazardous materials, substances, waste or other environmentally regulated
substance affecting the Premises.
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Mortgagor hereby indemnifies and holds harmless Mortgagee from and
against any and all damages, penalties, fines, claims, suits, liabilities,
costs, judgments and expenses (including attorneys', consultant's or expert's
fees) of every kind and nature incurred, suffered by or asserted against
Mortgagee as a direct or indirect result of:
(a) any warranty or representation made by Mortgagor in this paragraph
being or becoming false or untrue in any material respect or
(b) any requirement under the law, regulation or ordinance, local,
state or federal, regarding the removal or elimination of any hazardous
materials, substances, waste or other environmentally regulated substances.
Mortgagor's obligations hereunder shall not be limited to any extent by
the term of the Note, and, as to any act or occurrence prior to payment in full
and satisfaction of said Note which gives rise to liability hereunder, shall
continue, survive and remain in full force and effect notwithstanding
foreclosure of this Mortgage, where Mortgagee is the purchaser at the
foreclosure sale, or delivery of a deed in lieu of foreclosure to Mortgagee.
ARTICLE IV
SECURITY AGREEMENT
4.01 Creation of Security Interest. Mortgagor hereby grants to
Mortgagee a security interest in any and all Personal Property located on or at
the Premises, including without limitation any and all property of similar type
or kind hereafter located on or at the Premises for the purposes of securing all
obligations of Mortgagor set forth in this Mortgage. This instrument is a
self-operative security agreement with respect to the above described property,
but Mortgagor agrees to execute and deliver on demand such other security
agreements, financing statements and other instruments as Mortgagee may request.
4.02 Warranties, Representations and Covenants of Mortgagor. Mortgagor
hereby warrants, represents and covenants as follows:
(a) Except for the security interest granted hereby, Mortgagor is, and
as to portions of the Personal Property to be acquired after the date hereof
will be, the sole owner of the Personal Property, free from any adverse lien,
security interest, encumbrance or adverse claims thereon of any kind whatsoever,
except for the existing security interest of Deutche Financial Services
Corporation and Firstar Bank Iowa. Mortgagor shall notify Mortgagee of, and
shall defend the Personal Property against, all claims and demands of all
persons at any time claiming the same or any interest therein.
(b) Mortgagor shall not lease, sell, convey or in any manner transfer
the Personal Property without the prior written consent of Mortgagee, except for
the sale of inventory in the ordinary course of business.
(c) The Personal Property is not and shall not be used or bought for
personal, family or household purposes.
(d) The Personal Property shall be kept on or at the Premises and
Mortgagor will not remove the Personal Property from the Premises without the
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prior written consent of Mortgagee, except such portions or items of Personal
Property which are consumed or worn out in ordinary usage, all of which shall be
promptly replaced by Mortgagor.
(e) Mortgagor maintains a place of business in the State of Florida and
Mortgagor shall immediately notify Mortgagee in writing of any change in name or
Mortgagor's place of business as set forth in the beginning of this Mortgage.
(f) At the request of the Mortgagee, Mortgagor shall join Mortgagee in
executing one or more financing statements and renewals and amendments thereof
pursuant to the Uniform Commercial Code of Florida in form satisfactory to
Mortgagee, and will pay the cost of filing the same in all public offices
wherever filing is deemed by Mortgagee to be necessary or desirable.
(g) All covenants and obligations of Mortgagor contained herein
relating to the Mortgaged Property shall be deemed to apply to the Personal
Property whether or not expressly referred to herein.
(h) This Mortgage constitutes a Security Agreement as that term is used
in the Uniform Commercial Code of Florida.
ARTICLE V
REMEDIES UPON DEFAULT
5.01 Events of Default. Any one or more of the following shall
constitute a default under this Mortgage and the Note hereby secured:
(a) Failure of Mortgagor to make one or more payments required by the
Note on the due date thereof.
(b) Failure of Mortgagor to pay the amount of any costs, expenses or
fees (including counsel fees) of the Mortgagee, with interest thereon, as
required by any provision of this Mortgage.
(c) Failure to exhibit to the Mortgagee, within ten (10) days after
demand, receipts showing payment of real estate taxes and assessments.
(d) Except as hereinbefore permitted, the alteration, demolition or
removal of any building on the Premises without written consent of the
Mortgagee.
(e) Failure to maintain the Improvements on the Premises as herein
required, free of any liens placed during the term hereof.
(f) Failure to comply with any requirements or order or notice of
violation of law or ordinance issued by any governmental department claiming
jurisdiction over the Mortgaged Property within three (3)months from the
issuance thereof, or before any such violation becomes a lien against the
Mortgaged Property, whichever first occurs.
(g) Failure of Mortgagor or others to comply with or perform any other
warranty, covenant or agreement contained herein, in the Note, or in the Loan
Documents.
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(h) Any breach of any covenant or warranty or material untruth of any
representation of Mortgagor contained in this Mortgage, or the Note or any
guaranty executed in conjunction herewith.
(i) The institution of any bankruptcy, reorganization or insolvency
proceedings against the Mortgagor, the then owner or any person in possession of
the Mortgaged Property, or any guarantor, or the appointment of a receiver or a
similar official with respect to all or a substantial part of the properties of
the Mortgagor, the then owner or any person in possession of the Mortgaged
Property, and the failure to have such proceedings dismissed or such appointment
vacated within a period of forty-five (45) days.
(j) The institution of any voluntary bankruptcy, reorganization or
insolvency proceedings by the Mortgagor, the then owner or any person in
possession of the Mortgaged Property, or any guarantor, or the appointment of a
receiver or a similar official with respect to all or a substantial part of the
properties of the Mortgagor, the then owner or any person in possession of the
Mortgaged Property, and the failure to have such proceedings dismissed or such
appointment vacated within a period of forty-five (45).
(k) The imposition of any encumbrance, mortgage or security interest,
or the assertion or making of any levy, seizure, forfeiture action, mechanic's
or materialman's lien or attachment on the Mortgaged Property or any part
thereof.
(l) If default shall occur in any loan now or hereafter in existence
between Mortgagee and Mortgagor or any mortgage which the Mortgagor or any
guarantor has any interest whatsoever, and, conversely, the occurrence of an
event of default hereunder shall also constitute a default under any such other
loan.
(m) The occurrence of any event of default under the Note, or any Loan
Document, whether or not such event is specifically set forth herein.
(n) The occurrence of any event of default on any material contract
with or obligation when due to a third party or default in the performance of
any obligation to a third party incurred for money borrowed.
Provided, however, that Mortgagee shall give Mortgagor thirty (30) days
written notice of any non-monetary default before pursuing any remedy against
Mortgagor.
5.02 Default Rate. The Default Rate shall be the Contract Rate of
Interest provided in the Note, plus three percent (3%), provided, however, that
at no time shall any interest or charges in the nature of interest be taken,
exacted, received or collected which would exceed the maximum rate permitted by
law.
5.03 Judgment Rate. Any judgment rendered on the Note or this Mortgage
shall bear interest at the highest rate of interest permitted pursuant to
Chapter 687, Florida Statutes.
5.04 Acceleration Upon Default, Additional Remedies. In the event that
one or more defaults as above provided shall occur, the remedies available to
Mortgagee shall include, but not necessarily be limited to, any one or more of
the following:
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(a) Mortgagee shall declare the entire unpaid balance of the Note
immediately due and payable without notice.
(b) Mortgagee may take immediate possession of the Mortgaged Property
or any part thereof (which Mortgagor agrees to surrender to Mortgagee) and
manage, control or lease the same to such person or persons and at such rental
as it may deem proper and collect all rents, issues and profits, therefrom,
including those past due as well as those thereafter accruing, with the right in
the Mortgagee to cancel any lease or sublease for any cause which would entitle
Mortgagor to cancel the same; to make such expenditures for maintenance, repairs
and costs of operation as it may deem advisable; and after deducting the cost
thereof and a commission of five (5%) percent upon the gross amount of rents
collected, to apply the residue to the payment of any sums which are unpaid
hereunder or under the Note. The taking of possession under this paragraph shall
not prevent concurrent or later proceedings for the foreclosure sale of the
Mortgaged Property as provided elsewhere herein.
(c) Mortgagee may apply to any court of competent jurisdiction for the
appointment of a receiver or similar official to manage and operate the
Mortgaged Property, or any part thereof, and to apply the net rents and profits
therefrom to the payment of the interest and/or principal of said Note and/or
any other obligations of Mortgagor to Mortgagee hereunder. In the event of such
application, Mortgagor agrees to consent to the appointment of such receiver or
similar official, and agrees that such receiver or similar official may be
appointed without notice to Mortgagor, without regard to the adequacy of any
security for the debts and without regard to the solvency of Mortgagor or any
other person, firm or corporation who or which may be liable for the payment of
the Note or any other obligation of Mortgagor hereunder.
(d) Without declaring the entire unpaid principal balance due, the
Mortgagee may foreclose only as to the sum past due, without injury to this
Mortgage or the displacement or impairment of the remainder of the lien thereof,
and at such foreclosure sale the property shall be sold subject to all remaining
items of indebtedness; and Mortgagee may again foreclose, in the same manner, as
often as there may be any sum past due.
5.05 Additional Provisions. Mortgagor expressly agrees, on behalf of
itself, its successors and assigns and any future owner of the Mortgaged
Property, or any part thereof or interest therein, as follows:
(a) All remedies available to Mortgagee with respect to this Mortgage
shall be cumulative and may be pursued concurrently or successively. No delay by
Mortgagee in exercising any such remedy shall operate as a waiver thereof or
preclude the exercise thereof during the continuance of that or any subsequent
default.
(b) The obtaining of a judgment or decree on the Note, whether in the
State of Florida or elsewhere, shall not in any manner affect the lien of this
Mortgage upon the Mortgaged Property covered hereby, and any judgment or decree
so obtained shall be secured to the same extent as said Note is now secured. Any
judgment entered in connection with the Note shall bear interest on the judgment
amount at the highest rate of interest permitted under Chapter 687, Florida
Statutes, or any future successor or similar statute.
(c) In the event of any foreclosure sale hereunder, all net proceeds
shall be available for application to the indebtedness hereby secured whether or
16
not such proceeds may exceed the value of the Mortgaged Property for unpaid
taxes, liens assessments and any other costs relating to the Mortgaged Property.
(d) The only limitation upon the foregoing agreements as to the
exercise of Mortgagee's remedies is that there shall be but one full and
complete satisfaction of the indebtedness secured hereby.
(e) The Mortgagor shall duly, promptly and fully perform each and every
term and provision of any Construction or other Loan Agreement which has been
executed and delivered by the parties hereto simultaneously with the execution
and delivery hereof, the terms of which Construction or other Loan Agreement are
incorporated herein by reference. The lien of this Mortgage secures the payment
of all sums payable to Mortgagee and the performance of all covenants and
agreements of Mortgagor under the terms of any Construction or other Loan
Agreement.
5.06 Remedies Not Exclusive. Mortgagee shall be entitled to enforce
payment and performance of any indebtedness or obligations secured hereby and to
exercise all rights and powers under this Mortgage or the Note or under any
other agreement or any laws now or hereafter in force, notwithstanding some or
all of the said indebtedness and obligations secured hereby may now or hereafter
be otherwise secured, whether by mortgage, deed of trust, pledge, lien,
assignment or otherwise. Neither the acceptance of this Mortgage nor its
enforcement shall prejudice or in any manner affect Mortgagee's right to realize
upon or enforce any other security now or hereafter held by Mortgagee, it being
agreed that Mortgagee shall be entitled to enforce this Mortgage and any other
security now or hereafter held by Mortgagee in such order and manner as
Mortgagee may in its absolute discretion determine. No remedy herein conferred
upon or reserved to Mortgagee is intended to be exclusive of any other remedy
herein or by law provided or permitted, but each shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute. Every power or remedy given to
Mortgagee or to which it may be otherwise entitled, may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by Mortgagee and it may pursue inconsistent remedies.
5.07 Waiver of Automatic Stay. The Mortgagor hereby agrees that, in
consideration of the Mortgagee funding the loan secured by this Mortgage, in the
event that the Mortgagor shall (i) file with any bankruptcy court of competent
jurisdiction or be the subject of any petition under Title 11 of the United
States Code, as amended ("Title 11"); (ii) be the subject of any order for
relief issued under Title 11; (iii) file or be the subject of any petition
seeking any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future federal or state act
or law relating to insolvency or bankruptcy, or other relief from creditors for
debtors; (iv) have sought or consented to or acquiesced in the appointment of
any trustee, receiver, conservator, or liquidator; (v) be the subject of any
order, judgment, or decree entered by any court of competent jurisdiction
approving a petition filed against such party for any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or similar
relief under any present or future federal or state act or law relating to
insolvency or bankruptcy, or other relief from creditors for debtors, the
Mortgagee shall thereupon be entitled to relief from any automatic stay imposed
by Section 362 of Title 11, or otherwise, on or against the exercise of the
rights and remedies otherwise available to the Mortgagee under this Mortgage and
the Loan Documents, and as otherwise provided by law.
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ARTICLE VI
MISCELLANEOUS
6.01 Valid Existence. So long as the Mortgaged Property shall be owned
or held by a corporation or partnership (whether limited or general), such
corporation or partnership shall at all times maintain its valid existence and
shall be fully authorized to do business in the State of Florida and shall
maintain in the State of Florida a duly authorized registered agent for the
service of process. Failure to comply with such obligations shall be a default
under this Mortgage. In the case of a corporation or limited partnership, within
ninety (90) days after the expiration of the time for filing its annual report
and the payment of the appropriate taxes in the State of Florida, Mortgagor will
furnish to Mortgagee a certificate of good standing or other evidence
satisfactory to Mortgagee to show compliance with the provisions of this
Section.
6.02 Statements by Mortgagor. Mortgagor, within three (3) days after
request in person or within ten (10) days after request by mail, will furnish to
Mortgagee or any person, firm or corporation designated by Mortgagee, a duly
acknowledged affidavit or certificate setting forth: (i) the amount of the debt
secured by this Mortgage (including all principal and accrued interest); (ii)
that no offsets, defenses or counterclaims exist against such debt, or, if such
offsets or defenses are alleged to exist, full information with respect to such
alleged offsets and/or defenses; and (iii) that the Mortgagor is not in default
under the Note, this Mortgage or the Security Documents, or, if such default is
alleged to exist, full information with respect to such alleged default.
6.03 Successors and Assigns. The provisions hereof shall be binding
upon and shall inure to the benefit of the Mortgagor, its successors and
assigns, including without limitation subsequent owners of the Premises or the
leasehold estate of the Premises or any part thereof; shall be binding upon and
shall inure to the benefit of Mortgagee, its successors and assigns and any
future holder of the Note, and any successors or assigns of any future holder of
the Note. In the event the ownership of the Mortgaged Property or any leasehold
estate that may be covered by this Mortgage becomes vested in a person other
than Mortgagor, Mortgagee may, without notice to Mortgagor, deal with such
successor or successors in interest with reference to this instrument and the
Note in the same manner as with the Mortgagor, and may alter the interest rate
and/or alter or extend the terms of payment of the Note without notice to
Mortgagor hereunder or under the Note hereby secured or the lien or priority of
this Mortgage with respect to any part of the Mortgaged Property covered hereby,
but nothing herein contained shall serve to relieve Mortgagor of any liability
under the Note or this Mortgage (or any other agreement executed in conjunction
therewith) unless Mortgagee shall expressly release Mortgagor in writing.
Mortgagor and any transferee or assignee shall be jointly and severally liable
for any documentary or intangible taxes imposed as a result of any transfer or
assumption.
6.04 Notices. All notices, demands and requests given by either party
hereto to the other party shall be in writing. All notices, demands and requests
by the Mortgagee to the Mortgagor shall be deemed to have been properly given if
sent by United States registered or certified mail, postage prepaid, addressed
to the Mortgagor at the address as the Mortgagor may from time to time designate
by written notice to the Mortgagee, given as herein required. All notices,
demands and requests by the Mortgagor to the Mortgagee shall be deemed to have
been properly given if sent by United States registered or certified mail,
postage prepaid, addressed to the Mortgagee, or to such other address as the
Mortgagee may from time to time designate by written notice to the Mortgagor
given as herein required. Notices, demands and requests given in the manner
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aforesaid shall be deemed sufficiently served or given for all purposes
hereunder at the time such notice, demand or request shall be deposited in any
post office of branch post office regularly maintained by the United States
Government.
The Mortgagor shall deliver to the Mortgagee, promptly upon receipt of
same, copies of all notices, certificates, documents and instruments received by
it which materially affect any part of the Mortgaged Property covered hereby,
including, without limitation, notices, notices from any lessee or sublessee
claiming that the Mortgagor is in default under any terms of any lease or
sublease.
6.05 Modifications in Writing. This Mortgage may not be changed,
terminated or modified orally or in any other manner than by an instrument in
writing signed by the party against whom enforcement is sought.
6.06 Captions. The captions or headings at the beginning of each
Section hereof are for the convenience of the parties and are not a part of this
Mortgage.
6.07 Invalidity of Certain Provisions. If the lien of this Mortgage is
invalid or unenforceable as to any part of the debt, or if the lien is invalid
or unenforceable as to any part of the Mortgaged Property, the unsecured portion
of the debt shall be completely paid prior to the payments of the secured
portion of the debt, and all payments made on the debt, whether voluntary or
otherwise, shall be considered to have been first paid on and applied to the
full payment of that portion of the debt which is not secured or fully secured
by the lien of this Mortgage.
6.08 No Merger. If both the lessor's and lessee's estates under any
lease or any portion thereof which constitutes a part of the Mortgaged Property
shall at any time become vested in one owner, this Mortgage and the lien created
hereby shall not be destroyed or terminated by application of the doctrine of
merger and, in such event, Mortgagee shall continue to have and enjoy all of the
rights and privileges of Mortgagee as to the separate estates. In addition, upon
the foreclosure of the lien created by this Mortgage on the Mortgaged Property
pursuant to the provisions hereof, any leases or subleases then existing and
created by Mortgagor shall not be destroyed or terminated by application of the
law of merger or as a result of such foreclosure sale unless Mortgagee shall so
elect. No act by or on behalf of Mortgagee or any such purchaser shall
constitute a termination of any lease or sublease unless Mortgagee or such
purchaser shall give written notice thereof to such tenant or subtenant.
6.09 Governing Law and Construction of Clauses. This Mortgage shall be
governed and construed by the laws of the State of Florida. No act of the
Mortgagee shall be construed as an election to proceed under any one provision
of the Mortgage or of the applicable statutes of the State of Florida to the
exclusion of any other such provision, anything herein or otherwise to the
contrary notwithstanding.
6.10 Year 2000 Compatibility. Mortgagor shall take all action necessary
to assure that Mortgagor's computer based systems are able to operate and
effectively process data including dates on and after January 1, 2000. At the
request of Mortgagee, Mortgagor shall provide Mortgagee with assurance
acceptable to Mortgagee of Mortgagor's Year 2000 compatibility.
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6.11 Arbitration. Upon demand of any party hereto, whether made before
or after institution of any judicial proceeding, any claim or controversy
arising out of, or relating to the Loan Documents between the parties hereto (a
"Dispute") shall be resolved by binding arbitration conducted under and governed
by the Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules")
of the American Arbitration Association (the "AAA") and the Federal Arbitration
Act. Disputes may include, without limitation, tort claims, counterclaims,
disputes as to whether a matter is subject to arbitration, claims brought as
class actions, or claims arising from documents executed in the future. A
judgment upon the award may be entered in any court having jurisdiction.
Notwithstanding the foregoing, this arbitration provision does not apply to
disputes under or related to swap agreements.
Special Rules. All arbitration hearings shall be conducted in the city
in which the office of Mortgagee first stated above is located. A hearing shall
begin within 90 days of demand for arbitration and all hearings shall be
concluded within 120 days of demand for arbitration. These time limitations may
not be extended unless a party shows cause for extension and then for no more
than a total of 60 days. The expedited procedures set forth in Rule 51 et seq.
of the Arbitration Rules shall be applicable to claims of less than $1,000,000.
Arbitrators shall be licensed attorneys selected from the Commercial Financial
Dispute Arbitration Panel of the AAA. The parties do not waive applicable
Federal or state substantive law except as provided herein.
Preservation and Limitation of Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties agree to preserve, without
diminution, certain remedies that any party may exercise before of after an
arbitration proceeding is brought. The parties shall have the right to proceed
in any court of proper jurisdiction or by self-help to exercise or prosecute the
following remedies, as applicable: (i) all rights to foreclose against any real
or personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm the
sale; (ii) all rights of self-help including peaceful occupation of real
property and collection of rents, set-off, and peaceful possession of personal
property; (iii) obtaining provisional or ancillary remedies including injunctive
relief, sequestration, garnishment, attachment, appointment of receiver and
filing an involuntary bankruptcy proceeding; and (iv) when applicable, a
judgment by confession of judgment. Any claim or controversy with regard to any
party's entitlement to such remedies is a Dispute.
Each party agrees that it shall not have a remedy of punitive or
exemplary damages against the other in any Dispute and hereby waive any right or
claim to punitive or exemplary damages they have now or which may arise in the
future in connection with any Dispute, whether the Dispute is resolved by
arbitration or judicially.
Waiver of Jury Trial. The parties acknowledge that by agreeing to
binding arbitration they have irrevocably waived any right they may have to a
jury trial with regard to a Dispute.
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IN WITNESS WHEREOF, Mortgagor has hereunto set hand and seal all done
as of the day and year first written above.
Signed, sealed and delivered in the presence of:
/s/ Xxxxxxx X. Xxxxxx FEATHERLITE, INC., formerly known as
Name: Xxxxxxx X. Xxxxxx FEATHERLITE MFG., INC.
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxx
Title: Vice President
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 15 day of
October, 1999, by Xxxxxx X. Xxxxx, as Vice President of FEATHERLITE, INC.,
formerly known as FEATHERLITE MFG., INC. He is [ ] personally known to me or [X]
has produced Fla. Driver's License as identification.
/s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Notary Public
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EXHIBIT "A"
Legal Description
Xxx 0, 0, 0, 00, 00 and 15, and the East 104.41 feet of Lot 4 and the East 87.78
feet of Lot 12 of XXXX'X SUBDIVISION, according to the Plat thereof as recorded
in Plat Book 6, Page 47, of the Public Records of Seminole County, Florida (less
that part thereof in Xxxxx Xxxx 000 as described in Official Records Book 220,
Page 405, Seminole County Records)
AND
Lot 27 of FLORIDA LAND AND COLONIZATION COMPANY LIMITED X. XXXXXXXX'X MAP OF ST.
XXXXXXX according to the Plat thereof as recorded in Plat Book 1, Page 114,
Public Records of Seminole County, Florida (less that part thereof in Xxxxx Xxxx
000 as described in Official Records Book 220, Page 405, Seminole County
Records).
AND
All that part of XXXX ROAD, as shown on XXXX'X SUBDIVISION, according to the
plat thereof as recorded in Plat Book 6, Page 47, of the Public Records of
Seminole County, Florida, lying East of the Southerly extension of the West Line
of the East 87.78 feet of Lot 12, said XXXX'X SUBDIVISION, and lying West of the
West Right-of-Way Line of State Road No. 400 (Interstate Highway No. 4)
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